In 1996, Honorable Sylvia B. Pressler, Presiding Judge of the New Jersey Appellate Division wrote an opinion in the matter of Mendonza v. Monmouth Recycling, holding that an injured worker was not barred from receiving New Jersey Workers Compensation Benefits by the mere fact that he was out of status or as commonly referred to as “illegal”.
There are many individuals who are injured at work who legally do not have a right to be employed. “Illegal aliens” have the same rights as “legal aliens”. The Workers Compensation Judge who had held that “Illegal aliens” had no right to workers compensation benefits relied upon an analysis of the New Jersey Unemployment Benefits statute. Judge Pressler, however, found the Workers Compensation judge’s reasoning flawed and wrote the following:
Workers’ compensation, however, rests upon quite different predicates. The conceptual basis of the workers’ compensation system is the substitution of the statutory remedy for a common-law right of action, the statutory remedy becoming an integral component of the contract of employment. See Dudley v. Victor Lynn Lines, Inc.,32 N.J. 479, 488-489, 161 A.2d 479 (1960). Moreover, unlike the unemployment compensation system, the focus of workers’ compensation is not the primarily prospective one of seeing a worker through a temporary period of unemployment. Its crux, rather, is the compensation of a worker who is already injured on the job both for the time lost from work because of the injury and for the disabling effect of the injury on future earning capacity. See Medwick v. Bd. of Review. Div. Emp1. Sec.,69 N.J. Super. 338, 340-341 (App. Div. 1961). In this state the workers’ compensation system, unlike the unemployment compensation system, is not governmentally funded. Rather, it is primarily paid for by employers through their insurance premiums or self-insurance funds and the costs passed on to consumers. See Romanny v. Stanley Baldino Const. Co.,142 N.J. 576, 580-581, 667 A.2d 349 (1995). Thus, as explained by Judge Conford in his Dissenting opinion in Marcus v. Eastern Agricultural Ass’n, Inc.,58 N.J. Super. 584, 596, 157 A.2d 3 (App. Div. 1959), rev’d on Dissent, 32 N.J. 460 (1960), the purpose of workers’ compensation is not only to provide a prompt monetary remedy for workers injured in the course of their employment, but also to do so by a system in which the cost of industrial accidents is borne by the consumer as part of the cost of the product or service. See also Livingstone v. Abraham & Straus, Inc., 111 N.J. 89, 94-95, 543 A.2d 45 (1988); Lefkin v. Venturini, 229 N.J. Super. 1, 10-11, 550 A.2d 985 (App. Div. 1988). The private-sector responsibility for payment of workers’ compensation also serves the significant public purpose of encouraging employers to take steps to advance and promote workplace safety. Eger v. E.I. Du Pont DeNemours Co., 110 N.J. 133, 140, 539 A.2d 1213 (1988); Stephenson v. R.A. Jones & Co., Inc., 103 N.J. 194, 217, 510 A.2d 1161 (1986) (Stein, J., Dissenting).
We think it plain that none of these predicates is in the least degree compromised by the eligibility of an injured illegal alien for workers’ compensation. Surely, the effect on the worker of his injury has nothing to do with his citizenship or immigration status. If his capacity to work has been diminished, that disability will continue whether his future employment is in this country or elsewhere. Moreover, his need for medical treatment and his right thereto as an incident of his employment do not derive from or depend upon his immigration status. They are, rather, a function of work he has actually performed during the course of which he sustained an injury.
We also regard the desideratum of workplace safety enhanced by according workers’ compensation benefits to an illegal alien since an employer’s immunity from payment of compensation to that class of employees might well provide a disincentive to assuring workplace safety. Moreover, such an immunity from accountability might well have the further undesirable effect of encouraging employers to hire illegal aliens in contravention of the provisions and policies of the Immigration Reform and Control Act. See Montoya v. Gateway Insurance Company, 168 N.J. Super. 100, 104, 401 A.2d 1102 (App. Div. 1979).
There are, however, even more fundamental reasons, in the absence of an express statutory bar, for according illegal aliens the benefit of the workers’ compensation laws. To begin with, as we explained in Montoya, id. at 103-104, “a well established body of law holds that illegal aliens have rights of access to the courts and are eligible to sue therein to enforce contracts and redress civil wrongs such as negligently inflicted personal injuries.” We fully subscribe to that proposition. As we have pointed out, workers’ compensation rests upon both contract and tort principles-the contract right in effect substitutes for the tort right an employee would otherwise have. It would not only be illogical but it would also serve no discernible public purpose to accord illegal aliens the right to bring affirmative claims in tort for personal injury but to deny them the right to pursue the substitutionary remedy for personal injuries sustained in the workplace, particularly since, in the end, the right to workers’ compensation is as much an incident of the employment as the right to receive a salary, and has been earned once the labor has been performed. In short, we are in full accord with the holding in Montoya which recognized that in respect of illegal aliens, the sui generis nature of unemployment compensation and the considerations uniquely relevant to its administration are not transferable to or in any way applicable to the alien’s right to prosecute personal injury claims. And workers’ compensation is, in the end, a personal-injury remedy.
For the reasons we have herein expressed, we also disagree with the compensation Judge’s perception that workers’ compensation must be denied to an illegal alien because his contract of employment is illegal pursuant to federal law. First, as we have noted, a rule of law denying workers’ compensation to an illegal alien is more likely to encourage than to deter employers in employing illegal aliens. Such a rule would, therefore, disserve the public policy expressed by federal law. Beyond that, as we held in Montoya, id. at 106, in the context of an illegal alien’s right to income protection benefits under personal injury protection coverage, a distinction must be drawn between “work which, in and of itself, violates law and work which, although lawful, is engaged in by a person under a disability to do it.” We concluded there that as a matter of fundamental fairness, the disability under which an illegal alien nevertheless works does not justify withholding from him the privately funded benefits to which his labor would otherwise entitle him. We see no essential difference in this respect between income continuation benefits under a PIP policy and workers’ compensation benefits under an employer-funded insurance program.